Tennessee River Transp. Co. v. Kavanaugh

• Decision Date: 23 May 1893
• Citation: 13 So. 283,101 Ala. 1
• Parties: TENNESSEE RIVER TRANSP. CO. v. KAVANAUGH ET AL.
• Court: Alabama Supreme Court

13 So. 283

101 Ala. 1

TENNESSEE RIVER TRANSP. CO. v. KAVANAUGH ET AL.

Supreme Court of Alabama

May 23, 1893

Appeal from city court of Decatur; W. H. Simpson, Judge.

Action by L. T. Kavanaugh and another, as Kavanaugh Bros., against the Tennessee River Transportation Company, for the value of a barge alleged to have been hired by defendant under a contract that, if not returned in as good condition as when received, defendant would pay for the same, as upon a purchase. Plaintiffs had judgment for $675, and defendant appeals. Affirmed.

For former report, see 9 South. Rep. 395.

On the examination of one Lewis as a witness for plaintiffs, he testified that he had several business transactions with C H. Hobbs, as agent for the Tennessee River Transportation Company, and that the company had ratified the said transactions. The plaintiffs introduced in evidence an agreement made between the Tennessee River Transportation Company, by C. H. Hobbs, as agent, with the American Oak Extract Company, of which the witness Lewis was agent. The defendant objected to the introduction of this paper because it was irrelevant and immaterial. The court overruled said objection, and the defendant duly excepted. Upon the examination of said C. H. Hobbs, and after he had testified that when away from Decatur he was at work on the river between Guntersville and Decatur, he was asked, "What were you doing during the time you were up the river?" Plaintiffs objected to this question. The court sustained the objection, and defendant duly excepted. The witness was then asked by defendant this question: "State whether or not you transacted any business for the transportation company away from Decatur, except clerical work done on the boat." The plaintiffs objected to this question, and their objection being sustained, the defendant duly excepted. On the cross-examination of the witness Hobbs, and after denying that he had an agreement with the plaintiffs to buy the barge in question, the plaintiffs asked the said witness the following question: "State if on or about the 25th of March, 1889, at the foot of Bank street, near the river you did not have a conversation with Kavanaugh Bros., in which you said the Tennessee River Transportation Company ought to pay Kavanaugh Bros. for the barge, and that you were going to Chattanooga soon to see that they did pay them for it, and, at the same time, did you not get from Kavanaugh Bros. a check that they had given to the transportation company in payment of the bill for towing, saying that you wanted to use the check to show them that you had turned it in all right, and that you would take it up there, and give them hell on that check business? And did you not threaten to sue them?" Defendant objected to this question because it was irrelevant and immaterial, and that it was a narrative of a past transaction, and called for a declaration of an agent after the agency had ceased. Plaintiffs' counsel stated to the court that their object in asking this question was for the purpose of impeaching the witness. The court overruled the objection, and the defendant duly excepted. Upon the further cross-examination of said witness he was asked the following question: "Did you not ask Kavanaugh Bros. to submit you a statement as to what they would take from the Tennessee River Transportation Company in settlement of the barge matter, about April 14th, soon after the commencement of this suit; and did you not make of Louis T. Kavanaugh a verbal request for a statement in writing saying that you thought you could get a settlement for this barge from Tennessee River Transportation Company?" The defendant objected to this question upon the same grounds interposed to the question just above. The counsel for plaintiffs "stated that he did not ask this question to call forth independent evidence, but solely for the purpose of impeaching the witness. Upon the cross-examination of one T. V. Meyer, who testified that he was secretary and treasurer of the defendant company, he was asked this question by the defendant: "State whether or not you, as secretary of this company, ever signed a certificate, and filed it in the office of secretary of state, at Montgomery, designating a known place of business, and an authorized agent thereat." Plaintiffs objected to this question. Objection was sustained, and defendant duly excepted. On the cross-examination of one L. M. Meyer, a witness for the defendant, he stated: "I know Hobbs did not have authority to buy a barge, because the board of directors never empowered him to do so." The plaintiffs objected to this statement, and moved to exclude it, which motion the court sustained, and the defendant duly excepted. In rebuttal the plaintiffs introduced L. T. Kavanaugh, one of the plaintiffs, as a witness, and asked him this question: "State if on or about the 25th of March, 1889, at the foot of Bank street, in Decatur, near the Tennessee river, you had a conversation with C. H. Hobbs about the purchase of the barge in this suit." Defendant objected to this question on the ground that it was irrelevant and immaterial, and that it evoked a declaration of an alleged agent after the agency had ceased. Plaintiffs' counsel stated that he asked this question solely to impeach Hobbs. The court overruled the question, and the defendant duly excepted. There were many charges asked, and many exceptions reserved to the giving and refusal of the same by the court, but the opinion renders it unnecessary to notice them in detail.

Harris & Eyster, for appellant.

E. W. Godbey, for appellees.

STONE C.J.

This is the second appeal in this case. 93 Ala. 332, 9 South. Rep. 395. Most of the facts are stated in the report of the former decision. The testimony tended to prove the following facts, and to this extent there was little or no conflict: The defendant company was a foreign corporation, owning steamboats, and plying them between Decatur, Ala., and points on the river above. It transported passengers and freight for hire, and, in connection with its freight business, it was in the habit of employing barges. It owned some barges. The barge which gave rise to the present suit was the property of Kavanaugh Bros., and it was lying in the river at Decatur. Hobbs made a contract with Kavanaugh Bros. for the hire of the barge, and agreed to pay for its use a fixed compensation for every day he might retain it, and to return it in good repair. Failing to so return it, he agreed to pay for it as upon a purchase. The barge was taken in tow by one of the steamboats of the defendant corporation, was carried up the river, and was not returned to Decatur until a month afterwards. When returned it was very materially damaged, if not ruined, and Kavanaugh Bros. refused to accept it. They then brought the present suit to recover its alleged value. To this extent, as we have said, there was a substantial agreement in the testimony.

It was contended for plaintiffs-and their testimony tended to prove the contention-that they did not contract with Hobbs in his individual capacity, or on his credit; that Hobbs was the agent of the Tennessee River Transportation Company, and made the contract in its name, and for its use. Their testimony tended to show that Hobbs, as such agent, had authority to make such contract for, and in the name of, the transportation company. It went further, and tended to show that one Farnum, at and before the hiring of the barge by Hobbs, was the general manager of the transportation company, having large powers and control, and that he had introduced Hobbs to Kavanaugh Bros. and others as the transportation company's agent at Decatur, having power to contract in the name of the corporation. There was also testimony for plaintiffs tending to show that Hobbs had made contracts-one or more-in the name of the transportation company, which that company had ratified and complied with; purchasing property, and the company paying for it. The testimony for defendant was in conflict with that last stated. It denied the agency, denied that the contract was made in the name or for the use of the transportation company, but claimed that it was the individual contract of Hobbs himself. It gave testimony tending to rebut, explain, and parry the alleged acts of ratification. We think we are in safe bounds when we affirm that Mr. Farnum, when he was the managing agent of the corporation, was clothed with very large powers, and there is nothing in the transcript before us to controvert or impair the force of that conclusion. We take a further step: It is shown without conflict that the transportation company employed barges in its business. They were used as lighters when the river was low. The tendency of the testimony is strong that in some lines of their business-particularly in transporting timber-barges would be, and were, a convenience, if not a necessity, and there is testimony tending to show that in certain emergencies, such as a sudden rise of the waters in the rivers, it might become necessary to bring them into immediate service. Are not all these contingencies within the reasonable purview of the business the transportation company was engaged in? No unbending rule can be declared, which defines and fixes the extent of incidental powers a corporation may exercise, nor the agencies and means through which it can and may exercise its functions. In the nature of things, much must depend on the line of business the corporation is engaged in. Those whose powers and functions may be characterized as ambulatory have need of much more flexible rules than those whose entire business is transacted at a fixed, defined place.

In Place our former opinion we stated the main issue in this case to be one of fact. We sa...